IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Liu v. Bipinchandra, |
| 2016 BCSC 283 |
Date: 20160222
Docket: M091632
Registry:
Vancouver
Between:
Jia Mei (Susan)
Liu
Plaintiff
And
Dipak K.
Bipinchandra
Defendant
And
Insurance
Corporation of British Columbia
Third
Party
Before:
The Honourable Mr. Justice Voith
Reasons for Judgment
Counsel for the Plaintiff: | Martin C. Spieker |
Counsel for the Third Party: | John P.C. Miller |
Place and Date of Trial/Hearing: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
[1]
The plaintiff, Ms. Liu, was injured in a motor vehicle accident
that occurred on South West Marine Drive in Vancouver on September 24, 2008
(the Accident). The Insurance Corporation of British Columbia (the Third
Party), accepts that the defendant, Mr. Bipinchandra, was liable for the
Accident. The principal issues raised by this case are:
i) the extent or severity of Ms. Lius
injuries;
ii) whether Ms. Liu
properly mitigated her losses; and
iii) what
past and future loss of capacity Ms. Liu suffered.
Background
[2]
Ms. Liu was born in China in 1965 and she was thus 43 years old at
the time of the Accident. It is somewhat relevant that her mother was a
professor in public health. Her father was a physician. He originally worked as
a surgeon and later did research in infectious diseases. Her brother and sister
also trained to be doctors. Ms. Liu graduated with a degree in civil
engineering in 1988, and she worked as a civil engineer for the next 12 years
or so.
[3]
She married in 1990. She had one child, a son, in 1994.
[4]
She went to work for a real-estate company in 1999 and changed
employment again in 2001. After a process that took nearly five years, she immigrated
to Canada with her husband and son in 2004.
[5]
During the period from 2004 to 2008, Ms. Liu worked intermittently,
and engaged primarily in various forms of physical and seasonal work. She also
participated in various forms of schooling to improve her English. She studied
English, with government support, for three semesters in 2007 at Vancouver
Community College. She thereafter attended at Vancouver Central College, also
with government support, to obtain vocational training that would enable her to
do computer-assisted drafting (CAD), as well as other work.
[6]
Following a practicum that ended in August 2008, she applied for and
obtained a position at an engineering company called CPM Consulting (CPM).
The Accident occurred almost immediately thereafter.
Credibility and Reliability
[7]
While the Third Party accepts that Ms. Liu suffered some injuries
in the Accident, it argues that those injuries overwhelmingly resolved with
time and that there is little, if any, ongoing basis for the claim that Ms. Liu
advances. In the opening paragraph of its written submissions, the Third Party
asserts that the [c]redibility and reliability of the plaintiffs evidence is
very much in issue.
[8]
I agree that there are significant concerns with Ms. Lius
evidence. The examples of this are many and varied. I have left aside entirely
such matters as, for example, her having applied for employment on the basis of
a resume that was exaggerated and inaccurate. Perhaps, in her circumstances, as
a recent immigrant seeking employment, such matters are understandable.
Similarly, she has, from time to time, described herself as an engineer in
Canada when that is not accurate. Still further, the fact that Ms. Liu
struggled at times with the chronology of her evidence is, for present
purposes, of no moment.
[9]
I have focused instead on various matters that I consider are
illustrative of the difficulties with her evidence and that are directly
relevant to the primary issues that I identified at the outset.
[10]
Counsel for Ms. Liu accepts that one of the central issues in this
case is whether Ms. Liu properly mitigated her losses. It is clear, for
example, that Ms. Liu was prescribed various medications that she declined
to take. One of the reasons Ms. Liu gave for this, and she did so several
times, is because the medications were too expensive and that she could not
afford them. She similarly said that, though her surgeon had told her to go to
physiotherapy, she had not done so because it was again too expensive.
[11]
Her counsel accepts that this was not forthright. In 2007, with the
assistance of her father, she bought a small townhome within the UBC Endowment
Lands. Over the ensuing years, she paid off more than $100,000 of the principal
amount owing on her mortgage. In 2009, she leased a BMW automobile. Though Ms. Liu
was likely frugal, the assertion that she could not afford the medications, or
other treatments that were prescribed for her, was not honest.
[12]
Ms. Liu declined to obtain various forms of treatment, including physiotherapy,
which had been prescribed for her. Ms. Liu, in her direct evidence, said
she wished she had the money to attend physiotherapy. She was adamant that she
had sought funding for such treatment from the Third Party and, in particular,
from the occupational therapist, Ms. DSouza, that the Third Party had
assigned to her. She said she had repeatedly sought to contact Ms. DSouza
without success and that she was waiting for Ms. DSouza to find her a physiotherapist.
She further said that she had read a report that Ms. DSouza prepared and
that Ms. DSouza was lying in that report.
[13]
Ms. DSouza gave evidence which was supported by, and consistent
with, the various contemporaneous reports she had prepared. That evidence, and
those reports, reflected that Ms. DSouza had also recommended that the
plaintiff attend at physiotherapy, but that Ms. Liu had said she was too
busy with work to do so. There is no suggestion in these notes or materials
that Ms. Liu expressed any concern about the cost of such treatment. Ms. DSouza
had also recommended potential counselling to assist with Ms. Lius sleep
concerns. This recommendation was not pursued because Ms. Liu thereafter declined
any further occupational therapy assistance. Ms. DSouza, in her direct
examination, expressly denied that she fabricated any portion of her various
written reports. She was not cross-examined on the salient portions of her
reports, nor was the suggestion that Ms. Liu had thereafter tried, without
success, to contact her, ever put to her.
[14]
I accept Ms. DSouzas evidence and do not, conversely, accept the
evidence of Ms. Liu on these issues.
[15]
I also observe that Ms. Liu told Ms. Murray, who performed a
functional capacity evaluation, that she had stopped attending physiotherapy
because the clinic she went to was too far away and further commented that she
had not found the exercises and stretching regime she was given helpful.
[16]
One of the principal matters that Ms. Liu says she struggles with
is blurry vision. She was asked, in her cross-examination, whether she had
ever been diagnosed with cataracts and she denied that that was so until she
was shown the report of Dr. Yu, an ophthalmologist, that had been prepared
in 2009, and that identified that Ms. Liu had cataracts.
[17]
Ms. Liu expressly told several physicians or experts who examined
her that she been rendered unconscious in the Accident. The records, of both
the ambulance personnel and the hospital staff to whom she spoke after the
Accident, indicate that Ms. Liu had told these personnel that she had not
been unconscious in the Accident. In cross-examination, Ms. Liu now said
she could not remember whether she been unconscious or not.
[18]
Almost immediately following the Accident, Ms. Liu went to work, on
a full-time basis, for CPM for some six months. At that time, she was laid off
because of an economic downturn and because the company had insufficient work
for some of its staff. Ms. Liu did not thereafter either seek, in any
meaningful way, or engage in any form of employment for the next five years or
so, because she considered she was incapable of any form of employment
activity. Though I accept, as I will describe later in these reasons, that Ms. Liu
had some difficulties at her work that arose from the Accident, the suggestion
that she was, post-termination at CPM, incapable of any work whatsoever, is not
tenable on the evidence.
[19]
There are also various reasons to be concerned with the reliability of Ms. Lius
evidence. It is common for plaintiffs to be asked, by various experts, to rate
their pain on a scale of one to ten, with ten being the most severe pain
imaginable. It is also well-understood, and I accept, that the assessment or evaluation
of pain is subjective. Having said that, assertions of levels or degrees of
pain that are so far removed from what is objectively possible necessarily
undermine the evidence of a witness. In this case, for example, Ms. Liu
attended at a physical capacity evaluation. She reported, when she first
attended that session, that the pain she had in her back was an eight out of
ten. When she left at the end of her examination, she reported that her pain
was now a nine out of ten. Neither of these reports of pain is consonant with
someone who spent a full day performing the various tests required of them and
then left, unaided, at the end of the day.
[20]
A related concern arises with the sincerity of the effort that Ms. Liu
applied during testing. Though Ms. Murray, an expert called by the
plaintiff, expressed some concern with the honesty or earnestness of Ms. Lius
effort, she concluded, on balance, that Ms. Liu gave full effort when she
was tested.
[21]
The Third Party retained Mr. Worthington-White, an occupational
therapist, to review and comment on aspects of Ms. Murrays report. In
particular, Mr. Worthington-White, based on the raw test data and other
information that was generated when Ms. Murray tested Ms. Liu,
challenged the conclusion that Ms. Liu gave full and consistent effort
during the assessment.
[22]
He did so on various grounds. The following examples are illustrative
and not exhaustive of these grounds. He identified that Ms. Lius heart
rate had not increased appreciably in circumstances where, with genuine effort,
it should have. He similarly identified, as had Ms. Murray, that the
result of a hand dynamometer showed less than full effort. He identified that Ms. Lius
description of pain did not align with her functional abilities. He identified
that Ms. Liu did not change postures in circumstances where, if a person
was experiencing pain, such changes would be expected. He identified that Ms. Lius
description of her level of pain did not increase appreciably over the course
of the day when such changes are expected. Ms. Liu also did not report
that her level of pain had decreased following breaks or rests, when they would
be expected to. He further identified that Ms. Lius test scores on
certain types of testing were inexplicably low having regard to her background
and functional abilities.
[23]
Mr. Worthington-White accepted, as do I, that no one of the
foregoing factors, in isolation, is determinative or even telling of what level
of effort Ms. Liu put forth during the testing she underwent with Ms. Murphy.
In combination, however, I consider that these, and the other considerations identified
by Mr. Worthington-White in his report and evidence, call into question
the reliability of both Ms. Lius pain reporting and her effort during her
functional capacity evaluation.
[24]
Ms. Cox, a psychologist called by the Third Party, expressed similar
concerns with aspects of Ms. Lius test results in an evaluation she had
undertaken before Dr. Du, another psychologist.
[25]
Based on the foregoing illustrations or considerations, I am of the view
that there are significant concerns with both Ms. Lius credibility and
with the reliability of her evidence.
The Accident
[26]
The Third Party accepts that the defendant was liable for the Accident.
It is noteworthy that the Accident was a head-on collision with the defendants
vehicle crossing the centre line. It is also noteworthy that Ms. Liu
reported that following the Accident the defendant, described by her as a tall,
tattooed person of South Asian descent, approached her and threatened to kill
her if she did not stop crying. She also said that he was holding a necktie in
his hands as he approached her.
[27]
Ms. Lius evidence, in this respect, was supported, at least
indirectly, by the third-party evidence of Mr. Jang, a nearby resident. Mr. Jang,
after he had heard the Accident, went to see what had happened. He said that he
saw a man, who he described as a brown person, telling a woman, who was lying
on the ground and moaning in pain, to shut up. Mr. Jang told the
individual to leave the woman alone, at which point the man walked up to within
inches of Mr. Jang in a threatening manner. Thereafter, the man went to a
neighbours hedge and began to put leaves in his mouth. Mr. Jang believed
the man he described had been the driver of the other car in the Accident.
[28]
I accept Ms. Lius description of the Accident and of the events
that followed immediately thereafter.
Ms. Lius Injuries
[29]
There is no evidence to suggest that Ms. Liu suffered from any
pre-existing conditions, susceptibilities or contributing conditions to her
injuries. Ms. Liu fractured her left clavicle in the Accident. That
fracture was surgically repaired on October 7, 2008.
[30]
In the months that followed, Ms. Liu complained to her family doctor,
Dr. Leong, of dizziness, blurred vision, neck, shoulder, low back pain,
some numbness in her incision area, and in her left hand. In the months
following December 2008, Ms. Liu continued to complain of these same
symptoms, and now reported that her dizziness gave rise to headaches and
nausea. She also reported nightmares about the Accident, that she slept poorly,
and that she had some anxiety about work and driving.
[31]
Dr. Leong saw Ms. Liu roughly monthly in 2009 and about every
two months in 2010. Ms. Liu continued to report the same symptoms, and
reported some numbness on her right side and in her right foot and leg. During
this period of time, there was also some concern that Ms. Liu might be
depressed and suffer from post-traumatic stress. Ms. Liu also complained
of pain in her right toes and in her left shoulder and arms.
[32]
Before me, Ms. Liu complained of most of the same symptoms. She
considered that her headaches were likely the most important thing, though
she also struggled with blurry vision and nausea. She did not consider that
there had been any appreciable improvement in her physical symptoms. She was unable
to say how her neck and back pain, her headaches, dizziness, and blurred vision
were related to each other. She did accept that her nightmares, which had originally
occurred most nights, had diminished over time, and now took place every two to
three weeks, and that her sleep had also improved somewhat. Similarly, she said
that after the Accident she was nauseous on a daily basis. She said that she
was now nauseous one to two times a week and more often when she was anxious.
[33]
As it relates to her mood, Ms. Liu believed that she struggled with
anxiety and stress, but she did not believe that she suffered from depression.
She was uncertain whether she had ever been diagnosed with depression.
The Medical and Other Expert Evidence
[34]
This trial started on September 15, 2014, and was adjourned the
following day because of numerous problems with the plaintiffs various expert
reports. The trial recommenced on November 2, 2015 for a further ten days. It
was apparent, however, that several of the plaintiffs expert reports continued
to suffer from various difficulties.
i) Dr. Du
[35]
Dr. Du is a neuropsychologist who gave opinion evidence for the
plaintiff. He provided several opinions including i) that Ms. Liu had
suffered a brain injury in the Accident; and ii) that she had some residual
anxiety, depressed mood, and reduced cognitive efficiency. There were several
problems with his report and his evidence.
[36]
In his report, he opined that the Accident caused Ms. Liu to suffer
a brain injury in the form of a concussion. It appeared to be common ground
that the statutory framework of the Health Professions Act, R.S.B.C.
1996, c. 183 does not authorize a neuropsychologist to diagnose a brain
injury, or to opine on how that injury occurred; see Bialkowski v. Banfield,
2011 BCSC 1045 at para. 23; and Meghji v. Lee, 2009 BCSC 1542 at paras. 28-32.
[37]
Dr. Du accepted that the fact Ms. Liu had told him that she
returned to work in March 2009, rather than in October 2008, was a concern to
him. The chronology she had provided suggested that she had not worked after
the Accident for some six months. Similarly, he accepted that the fact that she
told him she lost her job because of her physical condition, when this was also
not true, was a concern. He accepted that he had been unaware that Ms. Liu
had worked for about six months post-Accident, and he accepted that this
omission in the information he had received called his conclusions into
question.
[38]
He further accepted that he had not received details about Ms. Lius
financial circumstances. He was unaware that she was paying the mortgage on a
condominium and that she was receiving money from her family. He accepted that
this further information might well have affected his conclusions.
[39]
Importantly, he accepted that he could not now say, with the new
information he had been provided, that his opinions were correct.
[40]
Finally, and in a similar vein, Dr. Du overwhelmingly relied on Ms. Lius
self-reports when addressing her psychological functioning. Dr. Cox
explained that the Code of Conduct of the College of Psychologists of British
Columbia requires that, in addition to a patients self-reporting, a
psychologist is required to undertake some objective testing of the psychological
functioning of that patient in order to perform a forensic assessment. Dr. Cox
said, and I accept, that there are various tests, including tests that are
normed for the Chinese population, that could have been used when Dr. Du
assessed Ms. Lius level of psychological functioning. Dr. Cox
confirmed that it was open to Dr. Du to decide what tests to use in his
examination of Ms. Liu. What was not on the table, however, Dr. Cox
said, was Dr. Dus decision to decline to make use of any such tests.
[41]
Based on the foregoing concerns and, in particular, Dr. Dus
acceptance that he was unable, with the additional uncontested facts he was
given during his cross-examination, to confirm the ongoing validity of his
opinions, I have placed relatively little weight on those opinions. I have
sometimes returned to those opinions when they are confirmed by or align with
the opinions of other experts.
ii) Mr. Nordin
[42]
Mr. Nordin prepared a vocational consulting report on behalf of Ms. Liu.
That report referred to, and relied heavily upon the earlier reports of Dr. Aitken
and Dr. Chan, as to Ms. Lius physical and psychological functioning,
respectively. Neither the report of Dr. Aitken nor Dr. Chan was ever
introduced into evidence, nor did either individual give evidence at trial.
[43]
While Mr. Nordin took a self-report from Ms. Liu and
administered various tests to her, he accepted that, without these supporting
materials, his confidence in his conclusions was diminished. He was, in his
words, basically standing alone here. He also accepted that, without the
support of these medical reports, he was relying exclusively on Ms. Lius
self-reporting and on the accuracy of that reporting.
iii) Dr. Dost
[44]
Dr. Dost is a neurologist who prepared a report dated October 15,
2014, and who was called by the plaintiff. I considered him to be clear,
forthright and helpful.
[45]
Dr. Dost did not opine in relation to Ms. Lius soft-tissue
injuries and deferred comment to a musculoskeletal evaluator. He found no
neurological explanation in relation to Ms. Lius right side numbness, but
accepted that such sensory disturbances are common in chronic pain cases.
[46]
Dr. Dost concluded that Ms. Liu had chronic headaches
consistent with post-traumatic migraine. Perpetuating factors, in Ms. Lius
case, included psychological conditions and sleep disruption. He further
concluded that such headaches can be associated with visual symptoms such as
blurring.
[47]
The primary challenge, directed by the Third Party at Dr. Dosts
opinion, stemmed from the fact that Dr. Dost had been provided with a
report prepared in 2013 by Dr. Mah, an ophthalmologist. That report
identified limited organic concerns with Ms. Lius eyesight. Dr. Dost
was not given the 2009 report of Dr. Yu, to which I referred earlier, and
in which Dr. Yu opined that Ms. Liu had cataracts. Neither Dr. Yu
nor Dr. Mah gave evidence at trial.
[48]
Dr. Dost accepted that he would have wanted to have Dr. Yus
report and that the conclusion in that report may have changed his opinion. He
accepted that cataracts can cause blurry vision and headaches.
[49]
Ultimately, however, this issue turns on matters of timing. There is no
evidence of Ms. Liu having had headaches or blurry vision prior to the
Accident as would be expected if those symptoms were the product of cataracts. Dr. Dost
said that post-traumatic headaches manifest themselves within seven days of an
event. Here, Ms. Liu began to complain of both headaches and blurry vision
within days of the Accident and has done so consistently thereafter.
[50]
I do not have the means of addressing the disparity in the opinions of
Drs. Yu and Mah. I accept Dr. Dosts view that cataracts develop slowly,
and that one would normally expect some gradual evolution of this condition
giving rise to blurred vision. Here the evidence establishes that Ms. Lius
difficulties developed overnight following the Accident. Having said this,
there are other concerns that relate to Ms. Lius difficulties with vision
that I will return to.
Conclusions on Ms. Lius Injuries Following the Accident
[51]
More than 30 years ago, McEachern C.J.S.C., as he then was, in Price
v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), both accepted that some
individuals continue to suffer from soft-tissue injuries and pain in
circumstances where most persons will recover and, relying on his judgment in Butler
v. Blaylock, [1981] B.C.J. No. 31 (S.C), confirmed that a court need
be exceedingly careful when the plaintiff relies primarily on their
self-report of pain. Though Butler was subsequently overturned, 1983
Carswell BC 2066, and the Court of Appeal confirmed, at para. 13, that a
plaintiff need not show objective evidence of continuing injury to recover,
the admonition or caution expressed in Price remains sound.
[52]
Furthermore, nearly 30 years ago, Southin J., as she then was, in Le
v. Milburn, [1987] B.C.J. No. 2690 at para. 2 (S.C.), in comments
that are apposite, observed:
When a litigant practises to
deceive, whether by deliberate falsehood or gross exaggeration, the court has
much difficulty in disentangling the truth from the web of deceit and
exaggeration. If, in the course of the disentangling of the web, the court
casts aside as untrue something that was indeed true, the litigant has only
himself or herself to blame. In this case there has been some deliberate
falsehood and some exaggeration.
[53]
This is a case that overwhelmingly turns on the evidence of Ms. Liu
at trial and on her self-reporting to various experts. The concerns I have
expressed earlier serve to undermine her evidence. Such concerns do not end the
matter. Instead, in such cases, the Court is compelled to seek corroborating
evidence in the form of third-party evidence, or evidence that is consistent
with the preponderance of probabilities, or consistency between the views of
experts, or some objective evidence that is consistent with a plaintiffs
reported injuries, or in some other form; see for example Dhaliwal v.
Greyhound Canada Transportation Corp., 2015 BCSC 2147 at paras. 273-277
and Han v Chahal, 2013 BCSC 1575 at paras. 68-95.
[54]
It remains important, however, to remember that the onus rests with the
plaintiff to establish her case. It is not the Courts obligation to parse
through the evidence and to try to cobble together a case for a plaintiff.
i) Soft Tissue and Other Physical Injuries
[55]
It is clear that Ms. Liu fractured her clavicle in the Accident and
that that injury required surgery. I accept that Ms. Liu suffered some
injuries to her back, neck and shoulders as a result of the Accident, and that
those injuries continue to persist to some degree. I do not accept that these
injuries were or are as severe as Ms. Liu asserts.
[56]
Ms. Liu has also reported numbness on her right side. Dr. Dost
found no neurological foundation for this condition, but observed that such
sensory disturbances are not uncommon in chronic pain cases.
[57]
Ms. Liu, as I have said, worked on a full-time basis for six months
after the Accident. I accept that when she worked, she did so with some
difficulty and discomfort. That conclusion is supported by the evidence of Ms. Tuliao,
who worked with Ms. Liu, and who reported that Ms. Liu would complain
to her of shoulder pain and dizziness, and that she would periodically vomit.
She could not recall if Ms. Liu had complained to her about her vision.
[58]
That being said, Ms. Liu has travelled to China on several
occasions. Indeed, she reported to Dr. Du that if she could afford to, she
would travel more. She has both maintained her home and cared for herself
albeit, she says, with some difficulty. I note parenthetically that virtually
no claim for the cost of future care is advanced by Ms. Liu. Ms. Liu
walks regularly, exercises, swims and does some yoga.
[59]
None of this is consistent with the extreme levels of ongoing pain
described by Ms. Liu, nor is Ms. Lius description of pain consistent
with the last opinion of Dr. Leong, dated September 15, 2014, in which she
said that she did not anticipate that there should be any future limitations
on [Ms. Lius] self care and leisure activities. Her description of pain
is also not consistent with Dr. Dosts report of October 15, 2014, wherein
he noted that most of Ms. Lius physical symptoms were normal, including
the fact that she had a full range of motion of cervical spine and both
shoulders, though she had some tenderness over her trapezii and cervical
muscles.
[60]
Having said this, I accept that Ms. Liu has been restricted in participating
from several activities since the Accident. Before the Accident, she danced
regularly, she hiked, she played Ping-Pong, and she engaged in other more
vigorous activities. She no longer participates in such activities. She is also
more isolated or solitary. Both these conclusions are supported by the evidence
of Ms. Liu, her son, and other third-party witnesses who were called by
the plaintiff.
ii) Psychological Conditions
[61]
I accept that Ms. Liu struggled with, and continues to struggle
with, anxiety as a result of the Accident. She had, and sometimes still has,
nightmares. She is fearful when driving in a vehicle. She worries about her
financial future. She has worried about her son and, in the past, about her
fathers health. I also accept that Ms. Liu has been clinically depressed.
This conclusion is supported by the opinion of Dr. Vallance, a
psychiatrist called by the Third Party. Dr. Dus opinion suggests that Ms. Lius
anxiety and depression are in partial remission.
[62]
I do not consider that Ms. Liu suffered or suffers from any post-traumatic
stress disorder. This conclusion is supported by the opinion of Dr. Vallance
and is, I note, consistent with the views of Dr. Du. To the extent the
opinion of Dr. Leong, her family doctor, suggests otherwise, I do not
accept that opinion.
iii) Brain Injury
[63]
I do not consider that Ms. Liu suffered any brain injury in the
Accident. If, based on her reports to various doctors, she had suffered such an
injury, both Drs. Vallance and Dost were of the view that that injury would have
been mild and uncomplicated, and that Ms. Liu would have been expected to
recover completely.
[64]
There is little, if any, evidence of cognitive impairment. Dr. Du
also confirmed this conclusion. Ms. Lius test scores in math, for
example, are in the 86th percentile. She presently tutors high school students,
including students who were intending to write university admissions exams, in
various science and math subjects.
[65]
I accept that Ms. Liu has, however, suffered some diminished
cognitive efficiency and ability to concentrate. Such diminished efficiency is
likely the product of pain and sleep disruption and would normalize if her
other symptoms abated. Dr. Dost also said that anxiety and depression may
affect Ms. Lius short-term memory. These views are supported by the
opinions of Dr. Vallance, Mr. Nordin and Dr. Du.
Mitigation
[66]
The plaintiffs failure to mitigate her losses is, her counsel accepts,
a significant issue. This issue arises in two respects. First, Ms. Liu has
failed to follow or adhere to virtually any of the treatment recommendations
that have been made for her. Second, Ms. Liu has failed, from early 2009
to date, to seek out work, though she did, commencing in 2014, begin to tutor
on a part-time basis.
i)
The Legal Framework
[67]
The general legal framework that pertains to issues of mitigation is
well-established.
[68]
The leading case is Janiak v. Ippolito, [1985] 1 S.C.R. 146, in
which the Supreme Court of Canada determined that the question of whether a
person has been reasonable in refusing recommended treatment is one for the
trier of fact to decide, taking into account the degree of risk from the
treatment, the gravity of the consequences of refusing that treatment, and the
potential benefit to be derived from the treatment. The Court stated that
mitigation is not so much a duty that a plaintiff owes to a defendant. Rather,
a failure to mitigate is a defence which reduces the amount of damages that the
defendant is obligated to pay.
[69]
In Morgan v. Galbraith, 2013 BCCA 305 at para. 78, the Court
of Appeal recently affirmed Chiu v. Chiu, 2002 BCCA 618 as the guiding
authority on the question of mitigation. In the latter case, the Court stated:
[57] The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss. In a personal injury case in which the plaintiff has not pursued a
course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing the
recommended treatment, and (2) the extent, if any, to which the plaintiffs
damages would have been reduced had he acted reasonably.
[70]
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144, a case where the allegation of failing to mitigate involved a refusal
to undergo cortisone injection treatment, the Court stated, that it:
[56]
would describe the mitigation test as a
subjective/objective test. That is whether the reasonable patient, having all
the information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment. The second aspect of the test is the
extent, if any to which the plaintiffs damages would have been reduced
by that treatment.
[Emphasis in original.]
ii)
Mitigation and Ms. Lius Circumstances
[71]
The reality is that Ms. Liu has, for various reasons, eschewed
virtually all of the treatment recommendations that have been made to her by
the myriad physicians she has seen. She has, instead, chosen, at the present
time, to rely on various herbal medicines and to attend at a Buddhist temple to
meditate and pray. She says that she finds the latter practises calming. I
accept that.
[72]
It was suggested by Ms. Lius counsel that I ought to recognize
that Ms. Liu is Chinese, and that many persons of Chinese background choose
not to rely on conventional medical treatments. It was suggested then that
there was a cultural component to Ms. Lius behaviour that I ought to
consider in addressing the question of mitigation.
[73]
Remarkably, the issue of a plaintiffs cultural or religious or national
predilections or beliefs, in the context of the mitigation analysis, has
received scant attention; see for example Abdalle v. British Columbia (Public
Safety and Solicitor General), 2012 BCSC 128 at paras. 7281; and Sebaa
v. Ricci, 2015 BCSC 1492 at paras. 132136.
[74]
In this case, I do not consider that I need address this issue. Ms. Lius
failure to adhere to the treatment recommendations that were made to her were
not, based on her own evidence, a product of any cultural influence. Based on
her evidence, she did not follow the recommendations that were made to her
because they were too expensive, or because they were ineffective or, in the
case of pharmaceuticals, because they upset her stomach, or because she was too
busy to attend at treatments, or for various other reasons. I would also
observe that virtually all of her various treatment providers, and many of the
experts that she relied on, were physicians of Chinese origin with various sub-specialties,
who practiced conventional medicine in the Vancouver area. So too her
immediate family consists or consisted of physicians and health professionals.
[75]
Ms. Liu did not call any witness or other treatment provider to
address any other form of alternative treatment that she may have sought or
obtained at any time. Furthermore, while Ms. Liu gave some evidence of
seeing physicians while in China, of being prescribed medicines in China, and
of seeing a massage therapist and an acupuncturist, this evidence was often of
a general or imprecise nature and was unsupported by any records.
[76]
For example, Ms. Liu gave evidence of two Chinese medicines she
took. She was uncertain of their purpose, or of the condition they were
intended to address, but believed that they improved her circulation and
nourished her brain.
[77]
The fact that Ms. Liu has failed to adhere, in any consistent,
sustained or disciplined way, to the recommendations she was provided is
highlighted in various expert reports. Dr. Leong, her family physician, in
relation to Ms. Lius prognosis, said in the last of her three reports:
f. What is the prognosis, if a prognosis can be made
at this time?
Answer: The prognosis for Ms. Liu
is complicated at best. She continues to complain of anxiety and stress, poor
sleep, headaches, poor vision and residual neck and back pain. She did not find
benefits in psychological counseling or consultations with psychiatrists. She
had little faith in prescribed medications which she dismissed as of little
benefit and costly. Instead she took a holistic approach to looking after
herself. For mental well-being she meditated daily at home and offered prayers
weekly at a Buddhist temple. For medication she relied on herbal medicine from
a Chinese physician. And for aches and pain she relied mainly on acupuncture
for relief but which she stopped going because she had run up a tab. Her
anxiety was further compounded by financial stress and inability to find meaningful
employment. She did not find gainful employment since the MVA and had to rely
on family and government assistance. I had difficulty in providing proper
assistance because of our divergent approach to medical treatment. I attended
to her rather infrequently. She only came to see me because of a request from
her lawyers or a need to be referred to a specialist. Until she changed her
self help approach in medical treatment, I would have difficulty in providing
her with further medical assistance.
[78]
Dr. Leong was similarly unable to address other questions that had
been put to her because of the foregoing constraints.
[79]
Dr. Vallance, in his second report, observed:
While Ms. Liu, when she met
with Dr. Du, expressed her dissatisfaction with the treatment that she had
received, I do note her tendency to blame the accident and its sequelae for
other misfortunes which have befallen her, such as her cataracts,
gynaecological problems and her sons difficulties, problems that may not
relate to the accident and its sequelae at all. She also referred to her
perception of not having received appropriate treatment for her problems when
she met with Dr. Chan on 1/19/2012. However, I note that she quit
antidepressant medication on her own, complaining of side effects, and as per Dr. Dus
report, she seemed more inclined to direct her recovery herself. Similarly, in
the report of Dr. Gordon Mackie, a neurologist, January 8, 2013, he notes
her lack of interest in taking medications for her headache problem.
[80]
Neither Dr. Chan nor Dr. Mackie was called at trial, and I do
not rely on the statements that are directly ascribed to them. Nevertheless,
the statements made by Dr. Vallance relating to Ms. Lius choosing to
direct her own recovery and blaming others, for example, Ms. DSouza, is
consistent with my own observations and conclusions.
iii)
Failure to Make Use of Prescription Medicines
[81]
Though Ms. Liu has been prescribed different medications at
different times by different physicians, she has taken virtually none of these
medicines on a sustained basis. Her evidence revealed that she filled out a
mere ten prescriptions for various medications over seven years. For some of
these prescriptions she admitted she had taken some, but not all, of what had
been prescribed to her. She took no medications, other than one prescription
for Tylenol 3, of which she used only some, for the first year after the
Accident. It is clear from Dr. Leongs earliest clinical notes that Ms. Liu
was prescribed other medications as well. Ms. Liu also took no medications
between 2010 and 2013.
[82]
For an intelligent person, who comes from a family of physicians, she
showed a surprising lack of knowledge or appreciation of what these various
medications were or of what conditions they were intended to address.
[83]
Ms. Liu gave varied reasons for not taking these various medicines.
Some, as I have noted, she said were too expensive. She said she would take
medications if she could get samples and not have to pay for those samples. I
have explained why I do not accept this evidence or explanation. Some, she said
upset her stomach. While this may have been so, she admitted she had been
prescribed other medicines that assisted her with her stomach upset, but she
considered these alternative medicines were too pricey. Others she took for
very brief periods of time because she did not believe they were effective.
[84]
At bottom, I do not accept much of this evidence. I consider, as several
other experts have noted, that Ms. Liu is a strong-willed individual who
considered that she could best direct her own recovery. Thus, for example, she
told Dr. Du that she resisted taking anti-depressants and wished to
address her psychological conditions by keeping active physically and socially.
[85]
A related issue arises with Ms. Lius vision. I have said that I
accept that Ms. Lius blurry vision is tied to her headaches which, in
turn, were caused by the Accident. Though I have accepted the evidence of Dr. Dost
on these issues, I, nevertheless, have some disquiet with other evidence that
relates to this issue.
[86]
I have said that Dr. Yu told Ms. Liu, in 2009, that she had
cataracts. Regardless of whether that diagnosis was correct, what is salient is
that there is no evidence that Ms. Liu sought to address this condition in
any way, though she did say she discussed the diagnosis with Dr. Leong.
[87]
In 2013, Dr. Mah said that Ms. Lius visual disturbances were
related to presbyopia described in Ms. Murrays report as age-related
changes to the eye. Apparently, Dr. Mah referred her for presbyopia
refractions. None of this evidence was, again, before me in any direct form.
[88]
Ms. Liu testified that Dr. Mah had prescribed glasses for her,
that she thought that those glasses were too expensive and, after speaking to Dr. Leong,
she purchased some glasses at London Drugs for $50.
iv)
Physiotherapy and Chiropractic Treatments
[89]
Dr. Leong recommended that Ms. Liu obtain physiotherapy
following the Accident. At trial, Ms. Liu said that she believed
physiotherapy had helped her and she wished she had the money to obtain
physiotherapy treatments. She said the same to Dr. Du. The reality is,
however, that Ms. Liu went to a mere handful of physiotherapy treatments
and she has not done so since February 2009.
[90]
Earlier, however, she had told both Dr. Leong and Dr. Vallance
that she did not consider physiotherapy helpful. At trial, Ms. Liu had
also said that she discontinued physiotherapy treatments because her
physiotherapist was too far away, and because she thought the exercises she had
been given were easy. I reiterate that Ms. Liu had told Ms. DSouza
she was too busy to go to physiotherapy.
[91]
Ms. Liu started chiropractic treatments in January 2010, more than
15 months after the Accident, and she used such treatments at different times
over the years. Her chiropractor, Dr. Hwang was called by the plaintiff.
He was not qualified to give expert evidence. Nevertheless, I observe that his January
2012 report, on which he was questioned without objection, stated that Ms. Lius
failure to obtain proper rehabilitation treatment following her surgery had led
to her chronic problems. The report of Dr. Vallance notes the Ms. Liu
reported to him that she had been told the same thing by the physician who had
operated on her. The report of Dr. Vallance also notes that Ms. Liu
was told to exercise at a gym but she had told him that she lacked the funds to
do so.
v)
Psychological Treatments
[92]
Ms. Lius family doctor directed her to both Dr. Chan, a
psychologist, and Dr. Mok, a psychiatrist, for counselling. Her report
addressed the importance of Ms. Liu obtaining counselling and assistance
for her anxiety, nightmares and depression. Dr. Chan apparently prepared a
report. His report was not, however, available at trial and neither he, nor Dr. Mok,
gave any evidence. Both doctors apparently saw Ms. Liu to assist her with
her anxiety and depression. Once again, Ms. Lius evidence was surprising.
She was not sure that she understood the difference between anxiety and
depression. She was also uncertain that she had been diagnosed with depression
when it is clear that she had been.
[93]
Ms. Liu said, at trial, that she had seen Dr. Chan three to
four times in 2009 and again in 2012 to help her with her anxiety and sleep.
She said that she thought that Dr. Chan had provided her with some help
but that his treatments were too expensive. Dr. Dus report asserts that Ms. Liu
has openly expressed her lack of benefit and interest in psychological
treatment. His notes indicate that Ms. Liu denied benefitting from Dr. Chans
treatments as she did not want to discuss the Accident with him. She apparently
saw Dr. Mok once. She was prescribed medication, but she declined to
purchase that medication, she told Dr. Du, because of its cost, and she
did not see Dr. Mok again after this.
vi)
Lack of Direction
[94]
A further issue is relevant. Because Ms. Liu appears to have
decided to manage her own recovery, that recovery has had little focus. The
third report of Dr. Leong recognizes that she saw Ms. Liu
infrequently after a point in time. She also identifies that Ms. Liu had
seen various doctors or specialists, and that Ms. Liu had been provided
various treatment recommendations, but that she was unaware whether those
recommendations had been followed. This pertained, for example, to the
recommendation of a surgeon, Dr. Broekhuyse, who recommended a course of
exercise for Ms. Liu and of Dr. Wong, a neurologist, who prescribed a
course of medication and follow-up visits with Ms. Liu. Once again, there
were no reports or other evidence from these physicians.
[95]
The likely corollary of this lack of direction is that Ms. Liu has
expressed considerable dissatisfaction and anger with her care. She has
expressed these views, for example, to each of Dr. Du and Dr. Vallance.
vii)
Conclusions on the Reasonableness of the Plaintiffs Conduct
[96]
Ultimately, Ms. Liu did not follow most treatment recommendations
that were provided to her. She did almost no physiotherapy. She did not join a
gym. She took few medications that were prescribed for her in any sustained or
focused way. She did not obtain any counselling of a meaningful nature. Her
reasons for her behaviours are varied and inconsistent.
[97]
There is no suggestion that any of these recommendations posed a risk to
her. I will momentarily come to the evidence which establishes that these
various recommendations had a significant prospect of assisting her. In such
circumstances, I do not consider that her failure to follow the various
treatment recommendations that were made to her was reasonable.
viii)
Would Treatment Have Helped the Plaintiff?
[98]
The second aspect of the mitigation analysis requires the Court to
consider the extent to which the plaintiffs damages would have been reduced
had the plaintiff acted reasonably.
[99]
The extent to which Ms. Lius soft-tissue injuries would have
abated or resolved had she obtained physiotherapy at an early date and
exercised as required, was not addressed directly in the evidence.
[100]
Dr. Dost did, however, address various potential treatments for Ms. Lius
headaches, which she had identified as her most significant difficulty, and the
attendant blurry vision that she has. In his report he said:
The plaintiff has chronic headache consistent with
post-traumatic migraine. Perpetuating factors include psychological duress and
sleep disruption.
These headaches have not been adequately addressed. One can
expect such headaches to be associated with visual symptoms such as blurring.
The plaintiff is currently using Chinese herbal medicine, which will not be of
any benefit.
I suggest Nortriptyline 10 mg a night increasingly weekly by
10 mg increments to a target of 50-100 mg a night. If ineffective, I suggest
Topamax about 25-50 mg a night. If ineffective after six weeks, I suggest Botox
two trials three months apart. The subsequent dose and frequency would have to
be determined by the treating physician.
I cannot prognosticate the response.
I do not expect a spontaneous change in her headache pattern
in the absence of treatment.
Determining impairment or disability from a subjective report
of headache is a difficult proposition. This depends on self-report.
I found no other neurological
issues.
[101] Dr. Dost
explained that it was possible, though he could not say probable, that Topamax,
for example, would reduce the intensity and frequency of Ms. Lius
headaches. He said the same thing for Botox. He explained that Botox
treatments, for reasons that are not fully understood, can address the type of
headache pain Ms. Liu has. He further explained that patients can have no
response to treatment, or some response that requires ongoing treatment or can
enjoy a complete cure. One-third of persons have no response to treatment. This
suggests, however, that most people either enjoy some benefit or are completely
cured, though it is impossible to predict what response a particular patient
will have.
[102] The legal question
of whether a plaintiff would have been assisted by a procedure or course of
treatment is to be determined on a subjective basis. Nevertheless, a defendant
need not lead direct evidence that the particular plaintiff at issue would have
benefitted from a specific treatment. The outcomes of many treatments, or
therapies, or procedures are uncertain. A plaintiff who acts unreasonably in
the face of the medical advice they are given cannot take refuge in that
uncertainty.
[103] Instead,
it is open to a defendant to establish the second aspect or branch of the
mitigation test indirectly. Thus, if most persons are assisted by a particular
treatment the Court can, as a matter of inference, determine that it is
probable that a particular plaintiff would have benefitted from that treatment.
[104] In this
case, the indirect evidence that two-thirds of persons who have the form of
headache pain that Ms. Liu has benefit from Botox treatments establishes,
as a matter of inference, that it is probable Ms. Liu would also benefit
from such treatments.
[105] Furthermore,
Dr. Dosts uncontradicted opinion is that the herbal medicines that Ms. Liu
relies on are of no benefit in addressing her headaches and that, in the
absence of treatment, her status is unlikely to change.
[106]
As it relates to Ms. Lius psychological conditions, though Dr. Vallance
accepted that neither anti-depressant medication nor counselling are always successful
and that there are no silver bullets, his December 2010 report states:
I agree with Dr. Aitkin and
with Dr. Chan that the priority in her treatment is the management of her
psychological and psychosocial problems. In terms of her psychological
problems, she is untreated. I believe she would benefit very considerably from
a course of antidepressant medication coupled with a number of sessions of
cognitive/behavioral psychotherapy commonly employed in the management of
depression. That same cognitive behavioral approach in psychotherapy should be
directed at her considerable anxiety and her psychosocial problems as well as
her depression.
[107] For all
practical purposes, Ms. Liu remains largely untreated, in almost every
respect, as a result of the various decisions she has made in the more than
five years since that report was written.
[108] It is
unusual for a plaintiff to so thoroughly disregard the treatment
recommendations that have been made to her. I am satisfied that most, if not
all of Ms. Lius various conditions would have improved considerably had
she acted otherwise. Accordingly, I am satisfied that an adjustment of 40% to
the amounts she would otherwise receive is, in all of the circumstances,
appropriate in light of her failure to mitigate her losses.
[109] I said
earlier that a second aspect of the Third Partys argument, as it related to
the issue of mitigation, is that Ms. Liu failed to return to work in
circumstances where she was able to do so. I will address this distinct issue
when I consider Ms. Lius claims for past wage loss as well as her claim
for loss of earning capacity.
General Damages
[110] Damages
for non-pecuniary losses are intended to compensate a plaintiff for pain,
suffering, loss of enjoyment of life, and loss of amenities. The law recognizes
that, while restitution for such loss is not possible, the object of
non-pecuniary damages is to provide substitute pleasures and amenities to make
the life of the injured person more bearable; Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 at 97 (S.C.), affd (1987), 49 B.C.L.R. (2d) 99 (C.A.). A
non-exhaustive list of factors that can influence an award of non-pecuniary
damages is described in Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
leave to appeal refd [2006] S.C.C.A. No. 100.
[111] I am
satisfied that Ms. Liu suffers from some degree of ongoing back, shoulder
and neck pain, as well as some numbness in her right side. These conditions
have now become chronic. She continues to have headaches and attendant blurry
vision. Periodically, she is nauseous. She still has periodic nightmares from
the Accident. She has stopped driving. She has some anxiety and depression,
though those conditions are likely in partial remission.
[112] I have
said that the range of her activities has narrowed. She no longer participates
in more vigorous activities, such as dancing, hiking and biking. She has become
more isolated and reclusive. She has, I accept, some difficulty with the
heavier or more demanding aspects of cleaning her house.
[113] The
prognosis for Ms. Liu, in the continued absence of treatment, is likely
poor, though counsel for the plaintiff, in his written submissions, accepts
that there is a substantial possibility of improvement in those symptoms in the
future. Aspects of that prognosis and, in particular, the significant prospect
that she may enjoy some improvement, or even resolution of her headaches and
vision difficulties, remain in her control. So too, to some extent, do her
issues with mood.
[114] I am also
satisfied that all of the foregoing conditions or circumstances were, subject
to the concerns that I have expressed about Ms. Lius failure to mitigate
her losses, caused by the Accident; see Clements v. Clements, 2012 SCC
32 at para. 8; and Ediger v. Johnston, 2013 SCC 18 at para. 28.
[115] The Third
Party argues that an award in the range of $35,000-$45,000 would be
appropriate. This submission, and the cases the Third Party relies on in aid of
its submission, is based on the assertion that the plaintiff suffered a
fracture of her clavicle which resolved without difficulty, and that there is
little objective basis or evidence to conclude either that Ms. Liu has
ongoing symptoms, or that those symptoms are caused by the Accident. For the
reasons I have provided, I do not consider that such an award, or its
underlying premise, would adequately compensate the plaintiff for her injuries
or present condition.
[116] Conversely,
however, the plaintiff argues that an award of general damages of $150,000 is
appropriate in all the circumstances. That award is based on the assertions, inter
alia, that Ms. Liu suffered the full-blown effects of a post-traumatic
stress disorder, that her depression and anxiety were disabling until 2014,
and that she suffers from a devastating set of injuries. The plaintiff, in
addressing this aspect of her claim, relied on a set of decisions which
include: Sebaa; Verge v. Chan, 2012 BCSC 876; Morena v. Dhillon,
2014 BCSC 141; Chang v. Feng, 2008 BCSC 49; and Gallant v. Slootweg,
2014 BCSC 1579.
[117] For the
reasons I have described, I do not consider the foregoing description of the
plaintiffs injuries or of her degree of ongoing impairment accurate, nor do I
consequently consider that the authorities her counsel relied on are apposite.
Instead, I consider that an award of $100,000 fairly compensates Ms. Liu,
in all the circumstances, for this aspect of her claim. After adjusting for Ms. Lius
failure to mitigate her losses, this figure becomes $60,000.
Past Wage and Future Earning Capacity Losses
i) General Evidence
[118] I
recognize that these two claims are different conceptually. Nevertheless,
aspects of the evidence that pertain to each claim overlap. Much of this
evidence is again inconsistent and troublesome.
[119] Prior to
arriving in Canada, Ms. Liu appears to have been a focused and successful
professional person who was consistently employed. From the time that she
arrived in Canada in October 2004, through to the time of the Accident, a
period of almost four years, her work history was intermittent or sporadic. Her
total income in this nearly four-year period of time, leaving aside government
assistance of various kinds, was less than $23,000 or about $6,000 annually.
[120] Ms. Liu
said, and I accept, that her ability to seek work during this period was
somewhat curtailed by her need to care for her son. In addition, during part of
this time she was undertaking the various courses of study, which I described earlier,
to enhance both her English and her computer skills. In particular, she
attended an eight-month AutoCAD training programme in 2007/2008.
[121] Ms. Liu
finished a practicum in August 2008. She was employed by CPM in September 2008
and began work, following a brief delay because of the Accident and her
surgery, in October 2008. She was hired on a full-time basis at a salary of $23
per hour. That hourly wage translates to an annual income of almost $48,000 or,
in 2015 dollars, to more than $54,000 a year.
[122] She worked
at CPM without interruption until March 20, 2009, at which time she was
dismissed because the company lacked sufficient work to retain her. Sometime
thereafter the company ceased to operate.
[123] One of the
former principals of CPM testified. He confirmed that Ms. Liu had passed a
probationary period of three months and that the company had had no concerns of
any sort with her performance. It is also relevant Ms. Tuliao testified
that after she was laid off, Ms. Liu called several times inquiring about
whether there was any further work available for her.
[124] Following
March 2009, Ms. Liu did not work in any capacity until 2014 when she began
to work as a tutor. Ms. Liu said, at trial, that after she was laid off at
CPM she tried to find some work, but accepted that she made no efforts to find
work in her chosen area or discipline. There is, however, almost no evidence of
this, but for the calls that she made to CPM, that I have referred to. The
evidence suggests, and I find, that Ms. Liu made only very modest efforts
to find work or to participate in the work force until 2014.
[125] I have
said earlier that I accept that Ms. Liu laboured with some difficulties
while at CPM. I do not accept, however, that Ms. Liu was unable, following
her dismissal from CPM, to do any work of any kind for more than the next half
decade, or that she is presently incapacitated to the degree that she asserts.
[126] In saying
this, I accept that Dr. Leong asserted, in her first report in April 2009,
that Ms. Liu could not work. Dr. Leong confirmed, however, that her
clinical notes, which speak to an inability on the part of Ms. Liu to
work, reference Ms. Lius assertions that she could not work, rather than a
diagnosis or opinion to that effect.
[127] Dr. Vallance
had opined, as early as December 2010, that Ms. Lius psychological
difficulties did not prevent her from working, and in his second report he
expressed that he does not know why Ms. Liu is not yet back at work. He
opined, as did others, that a return to work would have assisted Ms. Lius
state of mind and abated both her sense of isolation and her anxiety about her
finances.
[128] In July
2013, when Ms. Liu met with Dr. Du and expressed her view that she
had not obtained any benefit from her psychological treatments, she also said
that she thought the best way for her to recover was to rely on her methods,
including continuing to seek a job. There is, however, no evidence that Ms. Liu
sought any formal employment at that time. Though Dr. Du expressed some
concerns with Ms. Lius ability to work, for example, in a fast-paced
environment or one with tight deadlines, he was of the view that Ms. Liu
would benefit from support in searching for work in the form, for example, of
occupational therapy.
[129] Ms. Murrays
functional capacity assessment, leaving aside the concerns I have expressed
about the sincerity of Ms. Lius efforts during that testing, concluded
that Ms. Liu was capable of part-time employment in her chosen areas of
work.
[130] There is
then limited evidence, other than the opinion of Mr. Nordin which deals
with Ms. Lius employability, and which asserts that Ms. Liu cannot
or could not work. I do not accept this evidence, or that Ms. Liu can only
now work in an extremely diminished capacity.
[131] Other
evidence is relevant to Ms. Lius availability for work or to her likely
ability to find work. The evidence established that Ms. Liu went to China
in May or June 2009 to visit her father. She went to China twice in 2010
because her father had passed away and she had to look after his affairs. She
spent about five weeks in total in China in 2010. She went to China again in
2011 and spent approximately five months there at that time.
[132] Though the
evidence is not entirely clear, it appears, and I find, that Ms. Liu
received medical E.I. in the amount of $6,705 after she was let go from CPM.
[133] Counsel
for Ms. Liu also accepts that the economy was slowing in 2009 and 2010,
and that it is likely that Ms. Liu may have had some trouble finding
employment at that time.
[134] Still
further, Ms. Lius difficulties with English, based on Mr. Nordins
evidence, would likely have made finding replacement employment for Ms. Liu
somewhat more difficult even if this employment was as a CAD technician. This
conclusion also aligns with the empirical or economic data advanced by Mr. Szekely,
an economist, whose opinions on this issue I accept.
ii) The Past Wage Loss Claim
[135] In Ibbitson
v. Cooper, 2012 BCCA 249 at para. 19, the Court explained that a claim
for past income loss is to be addressed on the basis of a lack of capacity,
rather than as a mathematical formula. Furthermore, a claim for past loss of
earning capacity is based on what a plaintiff would have, not could have earned,
but for the injury that the plaintiff suffered; M.B. v. British Columbia,
2003 SCC 53 at paras. 49-50; and Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30. See also the useful summary of the relevant
principles in Hardychuk v. Johnstone, 2012 BCSC 1359 at paras. 175-178.
[136] I
emphasize that, in a claim for past wage loss, as with all other aspects of the
plaintiffs claim, the burden of proof rests with Ms. Liu. I consider, in
the main, that Ms. Liu has failed to establish the past wage claim that
she has advanced. That claim is for approximately $255,000.
[137] This is
based broadly on my conclusion that Ms. Liu was capable of a significant
level of work following the Accident. It may well be that she would have had to
work four days, rather than five days per week, or that she would work somewhat
less each day. I am of the view, however, that she was capable of earning 75%
or 80% of the income she would have earned but for the Accident. I have also
considered the time that Ms. Liu spent in China, as well as the other
factors that I have identified, including the income that Ms. Liu earned as
a tutor in 2014 and 2015.
[138] Ms. Lius
work as a tutor is somewhat seasonal. She does not appear to have students in
the summer. She generally works three days per week and sees one student each
day for one or one and-a-half hours.
[139] I assess Ms. Lius
wage loss claim at $50,000. I do not consider that I need to adjust this figure
separately for Ms. Lius failure to seek employment. The assessment I have
undertaken, in relation to this portion of Ms. Lius claim, already
considers or recognizes that failure. I do consider that Ms. Lius failure
to follow the treatment recommendations that have been made to her remain
relevant. Adjusting for Ms. Lius failure to mitigate in this respect gives
rise to an award, for this head of loss, of $30,000.
iii) Loss of Future Earning Capacity
[140]
In Pololos v. Cinnamon-Lopez, 2016 BCSC 81, I said:
[133] The relevant legal principles are well-established:
a) To the extent possible, a
plaintiff should be put in the position he/she would have been in, but for the
injuries caused by the defendants negligence; Lines v. W & D Logging
Co. Ltd., 2009 BCCA 106 at para. 185, leave to appeal refd [2009]
S.C.C.A. No. 197;
b) The central task of the Court
is to compare the likely future of the plaintiffs working life if the Accident
had not occurred with the plaintiffs likely future working life after the
Accident; Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 32;
c) The assessment of loss must be
based on the evidence, but requires an exercise of judgment and is not a
mathematical calculation; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18;
d) The two possible approaches to
assessment of loss of future earning capacity are the earnings approach and
the capital asset approach; Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 at para. 7 (S.C.); and Perren v. Lalari, 2010 BCCA 140 at paras. 11-12;
e) Under either approach, the
plaintiff must prove that there is a real and substantial possibility of various
future events leading to an income loss; Perren at para. 33;
f) The earnings approach will be
more appropriate when the loss is more easily measurable; Westbroek v.
Brizuela, 2014 BCCA 48 at para. 64. Furthermore, while assessing an
award for future loss of income is not a purely mathematical exercise, the
Court should endeavour to use factual mathematical anchors as a starting
foundation to quantify such loss; Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37.
See also the summary of legal principles in Hardychuk
at paras. 192-198.
[141] I rely on the
evidence relating to Ms. Lius ability to work that I have referred to. I
have also considered the report of Mr. Nordin, in which he opined that Ms. Lius
future capacity to work is limited, inter alia, by her facility with the
English language, by her impaired cognitive efficiency, and by the length of
time she has been out of the job market. These factors, in combination, Mr. Nordin
said, would, absent an improvement in Ms. Lius reported functioning,
prevent her from establishing herself in the Canadian work force in any
capacity.
[142] I observe
that, in 2008, Ms. Liu found a job at CPM within weeks of completing her
practicum, with her limited proficiency in English. Other evidence also
suggests that extensive proficiency in English is not required for CAD
technicians. I accept, as I have said, that English proficiency may make
finding a job easier.
[143] I further
observe that Ms. Liu presently tutors high school students in math and
other science subjects for their university advanced placement and entrance
exams. The degree or extent of any impairment of Ms. Lius cognitive efficiency,
which was described by Dr. Du as mild, must also be assessed in light of
this relatively elevated level of functioning. Finally, the fact that Ms. Liu
had not worked in any capacity for five full years when she met Mr. Nordin
is, based on my earlier conclusions, largely of her making and not a result of
the Accident.
[144] In this
case, I consider that assessing Ms. Lius loss of earning capacity is
better addressed using the capital asset approach. This is, in part, because Ms. Lius
future income or capacity is significantly constrained by her failure to have
worked in a conventional setting for the last eight years. There is little
doubt that this factor would work against her efforts to find employment at
this time. Seeking to apply the earnings approach, and then making a further
adjustment for this particular aspect of Ms. Lius failure to mitigate her
losses, unnecessarily complicates the assessment required of me.
[145]
In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), Finch J.,
as he then was, said at para. 8:
The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:
1. The
plaintiff has been rendered less capable overall from earning income from all types
of employment;
2. The
plaintiff is less marketable or attractive as an employee to potential
employers;
3. The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and
4. The plaintiff is less valuable to
himself as a person capable of earning income in a competitive labour market.
[146] I am
satisfied that each of the foregoing considerations are engaged and that Ms. Liu
is, for example, less capable overall of earning income from all types of
employment and that she is less attractive to some employers. I am further
satisfied that these impingements or reductions in her capacity to earn income
or find employment are a product of the Accident. Her ability to sit or stand
for protracted periods, her headaches, and associated vision problems with
extended computer work, are all relevant to her chosen fields and to many other
forms of employment that are or were available to her. Her restricted ability
to engage in more physical forms of employment is likely somewhat less relevant
at her present age.
[147] Though I
consider that reliance on the capital asset approach is preferable, I do
consider, as the Court of Appeal in Jurczak v. Mauro, 2013 BCCA
507 at para. 37 suggested, that use of some earnings signposts or
mathematical aids is useful.
[148] The report
of the plaintiffs economist suggests that if Ms. Liu had continued, for
example, to work as a CAD technician or as a drafting technologist, her
anticipated income to age 70 would have been approximately $490,000. This
figure had been adjusted for various labour market and other contingencies. As
a civil engineering technologist, that figure would be approximately $535,000.
[149] Ms. Lius
counsel accepts that an amount of approximately $100,000 should be deducted
from this sum on account of what Ms. Liu is likely to earn as a tutor or
from other employment in the future. Thus, her claim, in concept, assuming she
would have continued as a CAD technician or as a civil engineering
technologist, and assuming that she is not capable of doing so at this time,
and leaving out other considerations, would be for approximately $400,000.
[150] I have
said that I do not accept that Ms. Lius physical and psychological
injuries prevent her from working as a CAD technician or in other capacities.
It is also necessary, however, to address other negative and positive
contingencies.
[151] Counsel
for the plaintiff spent considerable time arguing that, but for the Accident, Ms. Liu
would likely have since become accredited as a professional engineer and
earned, based on economic data, a higher income than she would have as a CAD
technician. The economic data advanced on behalf of Ms. Liu suggests that
the income of an engineer, adjusted for market and other contingencies, would,
through to age 70, have approached $600,000.
[152] While
there is some prospect that Ms. Liu might have achieved this status or
designation, I consider that prospect remote. Based on her evidence at trial
and what she told Mr. Nordin, Ms. Liu had last worked as an engineer
in about 2000. Thereafter, until 2004, she held real-estate and administrative
positions. Thus, the reality is that Ms. Liu had not worked as a practising
engineer for a full eight years at the time of the Accident. The further
reality is that her surprising lack of proficiency in English, a matter that
was commented on by various experts, would have served to make this goal still
more difficult. While a lack of English proficiency was not identified as a
significant impediment to Ms. Liu obtaining employment as a CAD or
engineering technician, different considerations would pertain to her becoming
a civil engineer.
[153] Still
further, based on her own estimates or timelines, she would have commenced this
undertaking in her mid-40s and in circumstances where, based on her evidence,
she was concerned she was not spending enough time with her son. Finally, even
if Ms. Liu would have become an engineer, I believe that the income that
was advanced on her behalf in that capacity was excessive and failed to
recognize that at age 50 to 55, for example, Ms. Liu would have had
significantly less work experience than the average engineer who had graduated
and worked in Canada throughout their practising lives. Whether Ms. Liu
would work to age 70 is also questionable.
[154] In a
similar vein, there was also some economic data that I referred to earlier, and
that was relied on by Mr. Szekely, an economist, which indicated that
persons with limited English skills, and who had completed their bachelors
degree in China, earned less than persons who were fluent in English and who
had obtained their university education in Canada. Those differences were
significant and, based on empirical data, approached 30% to 40%. Though the
precise amounts earned by these two groups do not matter, I do accept that on
average, and broadly speaking, the incomes of the former group would be
somewhat lower than that of the latter group.
[155] There is
also the prospect that Ms. Liu may have earned somewhat more than the
average CAD or engineering technician. Evidence was led from one of Ms. Lius
former colleagues who works as an engineering technician and who earns
significantly more than the average amount earned by individuals in this
employment category.
[156] No
evidence was led from or on behalf of Ms. Liu to suggest that she had any
other professional or business aspirations and, accordingly, I need not
consider such contingencies.
[157] Taking
into account the considerations and contingencies I have identified, I consider
that an amount of $100,000 properly fixes Ms. Lius loss of future earning
capacity. I do not consider that it would be appropriate, with the approach or
analysis that I have used, to further reduce this amount to account for Ms. Lius
failure to work, in a conventional setting, since 2009 and for the practical consequences
of that failure. I do consider that it remains appropriate to adjust this sum
for Ms. Lius failure to follow the medical advice she was given at
different times. Thus, I consider that an award of $60,000 fairly compensates Ms. Liu
for this aspect of her claim.
Costs of Future Care
[158] A
plaintiff is entitled to compensation for the costs of their future care based
on what is reasonably necessary to restore that plaintiff to his or her
pre-accident condition to the extent that is possible. The test for determining
an appropriate award under this head of loss is an objective one based on
medical evidence. An award for the costs of future care must be supported by
medical evidence that justifies the claims being made, or the costs being
sought. In addition, those costs must be reasonable; Milina at 84.
[159] Ms. Murray
filed a report, on behalf of Ms. Liu, that advanced claims for various
forms of future care, including physiotherapy, exercise programmes, kinesiology
treatments, psychological treatment, occupational therapy, homemaking services,
and various forms of equipment and medications. No claim was advanced by
counsel for Ms. Liu, in his submissions, for most of these forms of
treatment.
[160] Ms. Lius
remaining claim for her future care costs is modest. She seeks, her counsel
said, a sum of $35,000. That figure does not directly align with the cost of
future care report filed by Mr. Turnbull on behalf of Ms. Liu.
Nevertheless, that amount was said to pertain to two specific expenses. The first
is for homemaking or house-care expenses, the second for psychological
treatments.
[161] I consider
that the first category of care is appropriate, in the sense that the need for
such care is supported by Ms. Murrays evidence, despite the underlying
issues with that evidence, and I would fix an appropriate amount for such
expenses at $25,000. That amount provides Ms. Liu with a modest amount of
assistance with heavy cleaning and with some annual assistance for longer and heavier
tasks. Adjusting that figure for Ms. Lius failure to mitigate results in
an award of $15,000.
[162] I do not,
however, consider that it would be appropriate to award Ms. Liu an amount
for future psychological treatments. There are two reasons for this. The first
is that there is no evidence before me of how many such treatments Ms. Liu
might require. Counsel for Ms. Liu accepted this.
[163] The second,
and more important reason, is because I am not satisfied that Ms. Liu
would, on the evidence before me, actually make use of any award for such
psychological assistance. The relevant case law establishes that the plaintiff
must prove that it is likely that they will avail themselves of the requested
services in the future; see Maltese v. Pratap, 2014 BCSC 18 at para. 78
and Izony v. Weidlich, 2006 BCSC 1315 at para. 74. I find that Ms. Liu
has not done so. The evidence at trial clearly indicated that Ms. Liu has
expressed resistance to psychological treatments and generally failed to obtain
such assistance.
Special Expenses
[164] The
plaintiff seeks $5,352.35 in special damages. The Third Party accepts that that
figure is reasonable.
Summary
[165] I have awarded the plaintiff the following amounts:
i) | Non-pecuniary damages | $60,000.00 |
ii) | Past wage loss | $30,000.00 |
iii) | Loss | $60,000.00 |
iv) | Cost | $15,000.00 |
v) | Special | $5,352.35 |
| Total | $170,352.35 |
[166] I consider
this award fair and reasonable in the circumstances.
[167] The
parties indicated that they would address tax and other adjustments directly.
If they require assistance, they are to contact the Registry and schedule a
further hearing.
[168]
Absent there being considerations that I am unaware of, in which case
counsel can again contact the Registry, the plaintiff is to have her costs.
Voith J.